FTC staff comments on extending Reg E to prepaid cards

by Ballard Spahr LLP

[author: Mercedes Kelley Tunstall, Stefanie Jackman]

The staff of the FTC’s Bureau of Consumer Protection has weighed in on the CFPB’s Advance Notice of Proposed Rulemaking seeking information on extending Regulation E requirements to general purpose reloadable prepaid cards or GPR cards. While the staff’s letter notes that the FTC voted to authorize the staff to submit a comment letter, it contains the disclaimer that the comments represent the staff’s views and such views “are not necessarily the views” of the FTC or any individual Commissioner. In the letter, the staff indicates that the information and views it offers “draw[s] on its experience” in enforcing Section 5 of the FTC Act (which prohibits unfair or deceptive acts or practices) in matters involving GPR cards, prepaid telephone cards and gift cards.

Observing that consumers risk loss through the use of GPR cards because federal law does not provide liability limits, the staff wants the CFPB to identify and propose for comment “specific requirements governing limitations on consumer liability.” The letter includes examples of varying practices for the disclosure of fees and information about expiration dates. Asserting the need for ”clear and prominent” disclosure, the staff thinks the CFPB should also identify and propose for comment “specific disclosure requirements for fees and expiration dates.”

In the letter, the staff discusses how mandated error resolution procedures may benefit consumers and how consumers would also benefit from “ready access to card balance and transaction history information.” The staff takes the view that current law does not sufficiently protect GPR cardholders from unauthorized recurrent debits. Accordingly, the staff would like the CFPB to identify and propose for comment “specific error resolution procedures” and “specific authorization requirements for recurrent payments.” 

While touting the benefits of applying error resolution procedures to GPR cards, the staff’s letter overlooks various problems that can result. For example, the staff fails to acknowledge the special risks to financial institutions that can arise if they are required to provisionally re-credit funds to a GPR card while investigating an error. Reg E requires provisional crediting of an account while the customer goes through the error resolution process.

With GPR cards, however, there may not be enough funds on the card when the issuer completes the error resolution process to cover the reversal of an amount provisionally re-credited. In addition, prepaid card industry experience has been that the provisional re-crediting requirement has led to much higher fraudulent error claims than with other products and produced fraud losses since provisional credits must be made before the error investigation is completed.  

The staff’s letter also overlooks that it can be difficult to know who has authority to use a card because GPR cards may be given as gifts after purchase or otherwise transferred for use by people who are not the original purchasers. As a result, for error resolution procedures to be effective, there will need to be methods for tracking the transfer and use of GPR cards to determine if charges are in fact unauthorized or fraudulent. 

The FTC staff does at least  appear to recognize that there will be costs associated with the extensive new requirements it wants the CFPB to propose. For each proposal the staff recommends, the staff says the CFPB should “tak[e] into account the costs and benefits of alternate ways” to achieve the desired protections.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.